Dumas v Adirondack Med. Ctr.2010 NY Slip Op 34042(U)

March 11, 2010Supreme Court, Saratoga County

Docket Number: 2007-0337Judge: Frank B. Williams

Cases posted with a "30000" identifier, i.e., 2013 NY SlipOp 30001(U), are republished from various state and

local government websites. These include the New YorkState Unified Court System's E-Courts Service, and the

Bronx County Clerk's office.This opinion is uncorrected and not selected for official

publication.

ST A TE OF NEW YORK SUPREME COURT- COUNTY OF SARATOGA

DA YID DUMAS as Administrator of the Estate of KIRSTEN LORRAINE DUMAS, and DA YID DUMAS, Individually and as Parent and Natural Guardian on behalf of ELIZABETH DUMAS, and JOSEPH DUMAS, Infants,

Plaintiffs,

-against-

ADIRONDACK MEDICAL CENTER, BRIM HEAL TH CARE, INC., ELIZABETH BUCK, M.D., EDWARD FROST, M.D., CATHERINE R. HILL, FNP/NPP, MICHAEL ELIO, M.D., RICHARD G. LAND, R.N., ANGELA L. GATKER, R.N., SHARON ST. LOUIS, R.N., SUSAN M. McKILLIP, R.N., KASSIDY N. TODD, P.A., JANE DOE I, being a factitious name to designate certain unknown female nursing staff at the ADIRONDACK MEDICAL CENTER, JOHN DOE, I, being a fictitious name to designate certain unknown male nursing staff at the ADIRONDACK MEDICAL CENTER, V ARINS AMBULANCE SERVICES, INC., BRIAN P. CASTINE and TREVOR A. YATES,

APPEARANCES:

Defendant.

POWERS & SANTOLA, LLP (Laura Jordan, Esq., of Counsel) Attorneys for Plaintiffs

ORIGINAL

DECISION AND ORDER

Index No. 2007-0337 RJI No. 45-1-2007-1165

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THUILLEZ, FORD, GOLD, BUTLER & YOUNG, LLP (Kelly M. Monroe, Esq.,of Counsel) Attorneys for Defendants Adirondack Medical Center, Brim Healthcare, Inc., Elizabeth Buck, M.D., Edward Frost, M.D., Michael Elio, P.A., Richard G. Land, R.N., Angela L. Gatker, R .N., Sharon M. St. Louis, R.N., SusanM. McKillip, R.N., KassidyN. Todd, PA., Jane Doe I, and John Doe I

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D' AGOSTINO, KRACKELER, MAGUIRE & CARDONA, P.C. (Rebekah Nellis Kennedy Esq., of Counsel) Attorneys for Defendants Elizabeth Buck, M.D. and Edward Frost, M.D.

HISCOCK & BARCLAY, LLP (Alexandra Maloney, Esq., of Counsel) Attorneys for Defendant Catherine R. Hill, FNP/NPP

PETRONE & PETRONE, P.C. (Janet F. Neumann, Esq., of Counsel) Attorneys for Defendants Varin's Ambulance Service, Inc., Brian P. Castine and Trevor A. Yates

FRANK B. WILLIAMS, J.

The events relevant to this action began on February 4, 2005 when the Lake Placid

Police Department responded to an incident involving Kirsten Dumas, who was attempting

to commit suicide by jumping off a bridge in Lake Placid, New York. Plaintiffs attempt was

thwarted by bystanders and she was eventually transported to Adirondack Medical Center's

Lake Placid Emergency Department for medical treatment.

After plaintiff was assessed at Adirondack Medical Center's Lake Placid facility, she

was transferred for admission to the Intensive Care Unit of Adirondack Medical Center's

Saranac Lake facility (hereinafter referred to AMC). Plaintiff was admitted to AMC under

the care and treatment of Dr. Elizabeth Buck.

At approximately 10:50 P .M. on February 4, 2005, Dr. Buck performed an evaluation,

examination and assessment of plaintiff. Plaintiff was intubated and sedated at the time. Dr.

Buck diagnosed plaintiff with alcohol ingestion and suicidality. Dr. Buck issued a "Restraint

and Seclusion Order" for wrist restraints. This was a twelve hour order due to expire at

10:50 A.M. on February 5, 2005. As indicated on the restraint order by Dr. Buck, the

purpose of the wrist restraints due to plaintiffs "high potential for removing lines, tubes,

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equipment or dressings" and "high risk of injury to herself." Thereafter, Dr. Buck requested

a psychiatric consultation for the morning of February 5, 2005 and expected plaintiff to be

transferred to a psychiatric facility the next day.

At approximately 11:40 P.M., plaintiff was extubated because she was gagging with

the ET tube and struggling.

At 12:30 A.M. Dr. Buck was notified that plaintiffs blood pressure had decreased but

that she was sleeping soundly. At some point after the extubation, plaintiffs wrist restraints

were removed. Dr. Buck believes that the wrist restraints were removed by the nurses based

upon their assessment that the restraints were no longer necessary to maintain plaintiffs

safety.

At 2:40 A.M. on February 5, 2005, plaintiff was found by Nurse Chartier to have tied

a wrist restraint around her neck and was in the process of tightening it when discovered by

the nurse. Nurse Chartier had to cut the wrist restraint used by plaintiff while struggling with

plaintiff. The wrist restraint used by plaintiff in her suicide attempt had been left at her bed

side after being removed at 11 :50 P .M .. During this incident, Nurse Chartier testified that

plaintiff was saying "I want to die, just let me die." The wrist restraints were re-applied at

that time.

Although not ordered by Dr. Buck, a one-to-one observation with a sitter at plaintiffs

bedside began at 3: 15 A.M. and the wrist restraints were removed. Plaintiff remained calm

the remainder of the evening with the sitter at her bedside.

Dr. Buck turned over the care of the patient to Dr. Frost at approximately 8:00 A.M.

and Dr. Buck did not provide any further treatment to plaintiff after that time.

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On the morning of February 5, 2005, at approximately 9:00 A.M., a psychiatric

evaluation was performed on plaintiff by Catherine Hill, a psychiatric nurse practitioner.

Nurse Hill's notes indicated that plaintiff was uncooperative, guarded, depressed, irritable,

hopeless, helpless and anhedonic.

Nurse Hill diagnosed plaintiff as suffering from severe depression with suicidal

gesture. As part of her final assessment of plaintiff that morning, Nurse Hill indicated that

plaintiff made a suicidal gesture and continued to be suicidal with ideation, plan and intent.

Nurse Hill stated that plaintiff was a danger to herself and recommended she be transferred

to a mental health unit for her safety and stabilization.

Around the same time as Nurse Hill's psychiatric evaluation of plaintiff, Dr. Edward

Frost was taking over as the attending physician in charge of the medical care and treatment

of plaintiff. Dr. Frost remained plaintiffs attending physician for the remainder of her

admission at AMC on February 5, 2005.

At approximately 10:10 A.M. on February 5, 2005, Dr. Frost reviewed plaintiffs

medical chart, spoke with Dr. Buck and Nurse Hill regarding plaintiff, and subsequently

performed an examination and evaluation of plaintiff. At the time of his examination, Dr.

Frost indicated that plaintiff was status post-suicide attempt and that she continued to voice

suicidal ideation and make suicidal gestures. He indicated his intent to attempt a transfer of

plaintiff to a mental health facility as recommended by Nurse Hill.

Fallowing the examination of plaintiff, Dr. Frost completed the paper work and orders

required to transfer her out of AMC to a mental health facility. In particular, Dr. Frost issued

a "Certificate of Examining Physician to Support an Application for Involuntary Psychiatric

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Admission" as she posed a substantial threat of harming herself. Dr. Frost indicated that

plaintiff stated she wanted to die and had attempted suicide already.

In order to have a patient involuntarily admitted for psychiatric treatment, two

physicians must certify the need. Dr. Christopher Hyson also examined plaintiff around

11 :00 A.M. on February 5, 2005 and issued a "Certificate of Examining Physician to Support

an Application for Involuntary Psychiatric Admission." Within his certificate, Dr. Hyson

indicated that plaintiff admitted she wanted to die during her prior suicide attempt and further

admitted she still wanted to die and would try to injure herself again if the opportunity was

available.

Glens Falls Hospital agreed to accept plaintiff for inpatient psychiatric treatment and

plans were set into motion to effectuate the transfer.

At approximately 11 :30 A.M. on February 5, 2005, Dr. Frost issued a "Patient

Transfer Order by Physician (Mandatory)."

While awaiting transfer and while still a patient in the ICU at AMC, plaintiff was left

unattended in her room, without restraints applied or sedating medications administered. At

approximately 11 :45 A.M., plaintiff went into her bathroom and tried to kill herself again by

tying a wrist restraint around her neck and tightening it. When she was found by Richard

Land, RN, it is alleged that she was blue in the face and cyanotic from the restriction of

oxygen she caused. Nurse Land had to physically cut the restraint off her neck because he

could not untie it.

Dr. Frost examined plaintiff after this second in-hospital suicide attempt around 12:00

P.M. on February 5, 2005. His physical exam revealed ecchymosis of the neck.

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As a result of this second suicide attempt, Dr. Frost determined that plaintiff was still

a suicidal risk and at 12:20 P.M., he ordered the medication Geodon as needed for agitation

and Ativan as needed for breakthrough agitation. He also ordered four point leather

restraints as a suicide precaution.

The four-point leather restraints ordered by Dr. Frost after the second suicide attempt

were removed by Nurse Land at 2:00 P .M. because a sitter was available to provide one-to­

one direct observation of plaintiff.

As her attending physician, Dr. Frost was responsible for issuing the medical orders

that would be in place during plaintiffs transfer from AMC to Glens Falls Hospital. The

only medical order written by Dr. Frost for use during plaintiffs planned transfer via

ambulance was for oxygen to be administered to maintain her oxygen saturations at or above

92%. No other orders were issued for her transport.

At approximately 4:00 P.M., defendant Varins Ambulance Service, Inc. (hereinafter

referred to as Varins) arrived at AMC to transfer plaintiff from the AMC ICU to Glens Falls

Hospital. The two V arins employees responsible for transport to Glens Falls Hospital were

defendants Trevor Yates and Brian Castine. At the time, Mr. Yates was a certified Advanced

Emergency Medical Technician and Mr. Castine was an ambulance driver.

Dr. Frost did not revise or make any additions to his transfer orders following the

second suicide attempt at AMC. It was his opinion that plaintiff had been calm and had not

made any suicidal gestures for over two and a half hours. Additionally, Dr. Frost states that

plaintiff had a history of tachycardia which could have been exacerbated by physical

restraints. Dr. Frost did not speak with the ambulance crew that would be transporting

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plaintiff to Glens Falls Hospital.

Nurse Land told Yates and Castine that plaintiff had attempted suicide several times

in the evening and overnight. During that conversation with Nurse Land, Yates asked if

plaintiff was going to be medicated for transport and was told she was not.

Then Nurse Land brought Yates and Castine into a conference room at the ICE and

told them that "This girl means it. She is the one who is going to jump out of your

ambulance." Yates and Castine confirmed that this conversation with Nurse Land took place.

Following their conversation with Nurse Land, Yates and Castine went into plaintiffs

room and had her sit on the ambulance stretcher and strapped two seat belts over her body,

one across her ankles and the other across her waist. They then placed a blanket over her

body and over the push-button release seat belts, covering her body from her feet to her chest,

including her anns and hands. The stretcher was elevated at the head so she was in a seated

position on the stretcher.

Castine testified that Yates told him he locked the back ambulance doors because

AMC thought it would be a good idea.

Plaintiff was then loaded into the ambulance so that her head was toward the driver

and her feet were closest to the rear ambulance doors. Yates sat on the bench seat located

on the passenger side of the patient compartment of the ambulance and buckled his seatbelt.

He was able to observe plaintiff from that position.

At approximately 4:20 P .M., Castine drove the ambulance away from AMC and began

the trip towards Glens Falls Hospital. About two minutes into the trip, Yates moved off the

bench seat and into the jump seat which was located behind the driver's seat of the of the

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ambulance so that the stretcher was between him and the rear ambulance doors. After he was

seated, Yates buckled his seatbelt and began doing paperwork.

Approximately five minutes later, Yates heard plaintiff moving and he saw her fling

off the blanket and head toward the rear doors of the ambulance. He observed her open the

rear passenger side door and jump from the back of the moving ambulance which was

traveling about 55 miles per hour. She landed on the highway and sustained injuries

requiring her transport back to AMC. A doctor by the name of George Cook, M.D. and a

nurse were the first two people on the scene to provide medical care to plaintiff.

Counsel for plaintiff alleges she had reactive pupils and a pulse and was breathing on

her own when they examined her on more than one occasion during the time period prior to

her being transported away from the accident scene. Counsel for Varins Ambulance Service

claims that Yates performed CPR on plaintiff until they got to AMC. Following plaintiffs

arrival back at AMC, she was transferred to Fletcher Allen Health Care in Burlington,

Vermont where she later died from her injuries.

All the parties have filed motions in this action. Plaintiff does not oppose the motions

for summary judgment by defendants Brim Healthcare Inc., Elizabeth Buck, M.D., Michael

Elio, P.A., Angela L. Gatker, R.N., Sharon M. St. Louis, Susan M. McKillip, R.N., P.A.,

Kassidy N. Todd, P.A., Jane Doe 1 and John Doe 1 and accordingly, those motions are

granted. The remaining motions will be addressed hereinbelow.

Plaintiffs complaint alleges six causes of action, one based on medical and/or

professional malpractice; one for wrongful death; loss of consortium and two causes of

action grounded in negligence, one of which is based upon negligent care, use and operation

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of the ambulance and one based upon the failure to take proper precautions to medicate

and/or restrain her to prevent her from harming herself.

Defendants Varins Ambulance Services, Brian P. Castine and Trevor A. Yates bring

a motion for summary judgment on the grounds that it was not negligent and it is entitled to

summary judgment as a matter of law. V arins argues that with respect to the alleged failure

to properly restrain the patient, EMT's engaged in Basic Life Support are specifically

prohibited from physically restraining a patient during inter-facility transports. Restraints,

if any, need to be ordered and applied by the sending physician and/or facility. Since Dr.

Frost, the sending physician, did not order restraints, they were not permitted to use them.

Defendant Varins also relies on Mental Health Act § 9.59 which states that an

ambulance service and any member thereof who is an EMT or an advanced EMT, who is

taking custody of and transporting a person to a hospital or facility shall not be liable for

damages, injuries or death alleged to have been sustained by an act or omission unless it is

established that such injuries or death was caused by gross negligence on the part of such

EMT.

The motion is opposed by plaintiff and the remaining defendants Adirondack Medical

Center, Richard G. Land, R.N. and Edward Frost, M.D. and Catherine R, Hill.

The motion for summary judgment is denied. Yates and Castine were specifically told

of plaintiffs prior suicide attempts. They were also told that plaintiff "would be the one to

jump out of the ambulance." Although Yates and Castine were not permitted to use

restraints, Yates' decision to move from the seat next to plaintiff, where he could observe and

presumably restrain her himself when she unbuckled the stretcher's belts, to the jump seat \ f

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where he could not observe her and, in fact did not observe her due to completing paperwork,

and being prevented from restraining her by the very placement of the stretcher, raises

questions of fact as to whether defendants Varin' s, Castine and Yates were grossly negligent.

Defendants Elizabeth Buck, M.D. (now dismissed from the action) and Edward Frost,

M.D. bring a motion for summary judgment on the grounds that they were not negligent and

are entitled to summary judgment as a matter oflaw.

In opposition to the motion by Dr. Frost, plaintiff submits the affidavit of Ralph J.

Carotenuto, M.D. who opines that Dr. Frost failed to request a follow-up psychiatric

evaluation of plaintiff following her second in-hospital suicide attempt. Given the course of

events and plaintiff's mental health condition as outlined in AMC's records, a fact finder

could determine that such an evaluation was warranted prior to plaintiff's transfer out of

AMC and also the failure to do so was a deviation from good and accepted medical practice.

Additionally, Dr. Carotenuto states that Dr. Frost failed to order four point restraints or

chemical sedation and one-to-one direct observation of the patient during the ambulance

transport and failure to do so was a deviation from good and accepted medical practices.

Plaintiff has raised sufficient questions of fact as to whether or not Dr. Frost was negligent,

thereby defeating Dr. Frost's motion for summary judgment.

Defendants Brim Healthcare, Inc. (now dismissed from the action), Adirondack

Medical Center and Richard G. Land, R.N., bring a motion for summary judgment on the

grounds that they were not negligent and are entitled to summary judgment as a matter of

law. Additionally, AMC and Land seek to dismiss the loss of consortium claim of David

Dumas and the conscious pain and suffering claim of Kirsten Dumas and allege that plaintiffs

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have not suffered any pecuniary loss.

These defendants claim that based upon the affidavit of Edward Bonk, Registered

Nurse, Certified Nurse Anesthetist, the Adirondack Medical Center nursing staff adhered to

good and accepted nursing practice and complied with all standards of nursing care in their

rendering of nursing care to the decedent. They allege that the nursing staff appropriately

and timely advised the physicians of any significant changes in plaintiffs condition; they

appropriately assessed plaintiff and made acceptable and reasonable determinations as to

when restraints, per physician order, should be removed; and finally, the nursing staff

appropriately and more than adequately advised the V arins ambulance crew that the decedent

had made several attempts at suicide during her admission to the hospital, that the decedent

was being transferred for mental health care and that the decedent had a real intent to commit

suicide, going so far as to advise the Varins crew that plaintiff "would be the patient to jump

out of the ambulance."

In opposition to the motion, plaintiff argues that while Edward Bonk, R.N., C.N.A.

may be qualified to provide an opinion as to accepted standards of nursing care and a breach

thereof, a nurse is not qualified to provide an opinion that said departure was or was not a

substantial factor in causing any injury to the plaintiff (Zak v Brookhaven Memorial Hosp.

Med. Cntr, 54 Ad3d 852).

In further opposition to the motion, plaintiff refers to the affidavit of Ralph J.

Carotenuto, M.D. who opines that Richard Land, R.N.'s care and treatment of plaintiff

deviated from accepted standards of nursing care and that such deviations were a proximate

cause of her death. He states that while Nurse Land verbally informed the Varin's

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ambulance personnel that plaintiff wanted to kill herself and was the patient who "would

jump out of the ambulance," there is no indication in the medical records that Nurse Land

ever conveyed this same information, warning or opinion to Dr. Frost, the attending

physician and person responsible for issuing the transfer orders for plaintiff. It is alleged that

Nurse Land had a duty to advocate for plaintiff as her nurse because nurses have more patient

contact than physician's do and that Nurse Land failed to do so.

The motion for summary judgment as to Adirondack Medical Center and Richard G.

Land, R.N. is denied. Plaintiff has submitted sufficient evidence to raise questions of fact

as to whether or not Adirondack Medical Center and Richard G. Land, R.N. were negligent,

thereby defeating their motion for summary judgment in its entirety.

Plaintiff brings a motion seeking an order granting him leave to serve an amended

complaint of gross negligence against defendant Varins Ambulance Service, In., Brian P.

Castine and Trevor A. Yates. Defendants Adirondack Medical Center, Brim Healthcare,

Inc., Michael Elio, P.A., Richard G. Land, R.N., Angela L. Gatker, R.N., Sharon M. St.

Louis, Susan M. McKillip, R.N., P.A., KassidyN. Todd, P.A., Jane Doe 1 and John Doe 1

bring a motion seeking an order granting them leave to serve an amended cross claim and

granting them leave to serve an amended verified bill of particulars against defendants Varins

Ambulance Services, Inc., Brian P. Castine and Trevor A. Yates specifically alleging a claim

of gross negligence against them. Defendants Elizabeth Buck, M.D., Edward Frost, M.D.,

bring a motion seeking an order granting them leave to serve an amended cross claim and

granting them leave to serve an amended verified bill of particulars against defendants Varins

Ambulance Services, Inc., Brian P. Castine and Trevor A. Yates specifically alleging a claim

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of gross negligence against them. The motions are opposed by counsel for Varins

Ambulance Services, Inc., Castine and Yates.

The motion is granted on the grounds that CPLR 3025 specifically states that "Leave

shall be freely given upon such terms as may be just * * * . " The facts upon which the claim

of gross negligence have already been pied and there is no prejudice to defendant Varins

Ambulance Services, Inc., Castine and Yates in allowing the amendment.

This decision shall constitute the order of the court.

DATED: Marchl1__, 2010

Saratoga Springs, New York

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ENTERED Kathleen A. Marchione

~(j~ HON. FRANK B. WILLIAMS

JUSTICE OF THE SUPREME COURT

Paper~e~ Clerk

1. Notice of Motion dated October 30, 2009 and Affidavit of Janet Neumann, Esq., dated October 29, 2009, with annexed exhibits.

2. Affidavit of Mark A. Varin, Esq., dated October 29, 2009, with annexed exhibits. 3. Affidavit of James R. Storey, M.D., dated October 30, 2009, with annexed exhibits. 4. Notice of Motion and Affidavit of Kelly M. Monroe, Esq., dated November 2, 2009,

with annexed exhibits. 5. AffidavitofEdwardC.Bonk,R.N.,C.R.N.A.,datedNovember2,2009, withannexed

exhibits. 6. Memorandum of Law by Kelly M. Monroe, Esq., dated November 2, 2009, with

annexed exhibits. 7. Notice of Motion by Rebekah Nellis Kennedy, Esq., dated November 4, 2009. 8. Affinnation ofRebekahNellis Kennedy, Esq., dated November4, 2009, with annexed

exhibits. 9. Affirmation of Elizabeth Buck, M.D., undated. 10. Affirmation of Edward F. Frost, M.D., undated. 11. Memorandum of Law by Rebekah Nellis Kennedy, Esq., dated November 4, 2009. 12. Affidavit of Kelly M. Monroe, Esq., dated November 12, 2009. 13. Affirmation of Rebekah Nellis Kennedy, Esq., dated November 16, 2009. 14. Affirmation of Janet F. Neumann, dated November 19, 2009. 15. Affinnation of Janet F. Neumann, dated November 25, 2009.

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16. Affirmation of Janet F. Neumann, dated November 25, 2009. 17. Affidavit of Ralph J. Carotenuto, M.D., dated December 10, 2009, with annexed

exhibits. 18. Affidavit of Kelly M. Momoe, Esq., dated December 11 , 2009. 19. Affidavit of Alexandra Maloney, Esq., dated December 15, 2009. 20. Affidavit of David Dumas, dated December 31, 2009. 21. Affirmation in Opposition by Laura M. Jordan, Esq., dated January 1, 2010, with

annexed exhibits. 22. Memorandum of Law by Laura M. Jordan, Esq., dated January 1, 2009 (sic). 23. Reply Affirmation of Rebekah Nellis Kennedy, Esq., dated January 6, 2010. 24. Affirmation of Janet F. Neumann, dated January 6, 2010. 25 . Affirmation of Janet F. Neumann, dated January 6, 2010. 26. Reply Affidavit of Kelly M. Momoe, Esq., dated January 7, 2010. 27. Notice of Motion by Laura M. Jordan, Esq., dated January 8, 2010. 28. Affirmation of Laura M. Jordan, Esq., dated January 8, 2010, with annexed exhibits. 29. Affirmation of Lori E. Petrone, Esq., dated January 14, 2010. 30. Reply Affirmation of Laura M. Jordan, Esq., dated January 20, 2010. 31. Notice of Motion and Affidavit of Kelly M. Momoe, Esq., dated January 25, 2010,

with annexed exhibits. 32. Notice of Cross Motion by Rebekah Nellis Kennedy, Esq., dated January 28, 2010. 33. Affirmation of Rebekah Nellis Kennedy, Esq., dated January 26, 2010, with annexed

exhibits. 34. Affirmation of Janet F. Neumann, Esq., dated February 2, 2010, with annexed

exhibits. 35. Affirmation of Janet F. Neumann, Esq., dated February 4, 2010, with annexed

exhibits. 36. Affirmation of Kelly M. Monroe, Esq., dated February 11, 2010. 37. Reply Affirmation of Rebekah Nellis Kennedy, Esq., dated February 11, 2010.

The court is filing the original decision and order together with original papers in the Saratoga County Clerk's Office. Attorneys for plaintiffs to comply with CPLR 2220.

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